Legal Research
Cases
Fung v Stocovaz

Fung v Stocovaz

Case [2006] NSWSC 1345 8 December 2006

Restitutio in Integrum

Limitation Periods

Specific Performance

Unjust Enrichment

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
(2007) 14 ANZ Insurance Cases 61-730

New South Wales

Supreme Court

CITATION: On Tai Fung v Janice Rosemary Stocovaz [2006] NSWSC 1345
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/11/06
21/11/06

JUDGMENT DATE :
8 December 2006

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 41

CASES CITED: Roper v Johnson (1873) LR 8 C.P. 167
Darbishire v Warran [1963] 3 All ER 310
Jansen v Dewhurst [1969] VR 421
Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88
Murphy v Brown (1985) 1 NSWLR 131
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd (2001) NSWCA 313
Port Kembla Coal Terminal v Braverus Maritime Inc (2004) 140 FCR 445
Consort Express Lines Ltd v J-Mac Pty Ltd (2006) FCA 833
Lodge Holes Colliery Company Ltd v Wednesbury Corporation (1908) AC 323
The Board of Governors of the Hospitals For Sick Children and another v Mc Lauglin & Harvey PLC and others (1990) 19 Con LR
Harriton v Stephens (2004) NSWLR 694
Radford v De Froberville and another (1978) 1 All ER 33 at page 44.
Moore v DER Ltd (1971) 1 WLR 1477

PARTIES: On Tai Fung - Plaintiff
Janice Rosemary Stocovaz - Defendant

FILE NUMBER(S): SC 15618 of 2005; 20046 of 2006

COUNSEL: J. Alexis SC with J Gruzman - Plaintiff
J Glissan QC with K Manion - Defendant

SOLICITORS: Gells Lawyers - Plaintiff
CKB Partners - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

8 December 2006

No:15618 of 2005
No: 20046 of 2006

On Tai Fung v Janice Rosemary Stocovaz
JUDGMENT:

1 On 17 September 2004, the Plaintiff purchased from Mercedes Benz of Sydney, a new Mercedes Benz E200 Elegance Kompressor (the Mercedes) for the sum of $95,563. The purchase was financed by a Hire Purchase Agreement. A few weeks later on 7 November, the Mercedes whilst being driven by the Plaintiff’s wife, Maria, at Bondi Junction was damaged when it came into collision with a vehicle driven by the Defendant. The collision was attributable solely to the Defendant’s negligence. Immediately prior to it, the Mercedes was in “as new” condition.

2 On the following day, Mrs Fung telephoned Perfect Auto Body Pty Ltd (Perfect), a motor vehicle repairer at Alexandria, with a view to having the Mercedes repaired. Perfect was known to Mr and Mrs Fung as it had repaired other Mercedes cars owned by them and they had been satisfied with the quality of its workmanship and service. Moreover, Perfect was not only located close to where they lived, but was listed in Mercedes Benz Workshop Directory as its authorised paint and panel repairer in the Sydney Metropolitan area.

3 Following the telephone conversation, Mrs Fung drove the Mercedes to Perfect, having in the meantime obtained a claim number from the Plaintiff’s insurer Allianz. The vehicle was inspected; an estimate prepared and she was requested to return with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fung v Stocovaz

Details

AGLC: Fung v Stocovaz [2006] NSWSC 1345
Case: [2006] NSWSC 1345
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Fung v Stocovaz involved a dispute between On Tai Fung, the Plaintiff, and Janice Rosemary Stocovaz, the Defendant. The Plaintiff claimed damages for the repair of his Mercedes Benz, which was damaged in a collision caused by the Defendant's negligence. The primary legal issues were whether the Plaintiff was entitled to recover the full cost of repairs without any deductions and whether the Defendant could argue that the repair costs were extravagant or unreasonable.

The court found that while the Plaintiff had a right to be compensated for his loss, this right was not absolute and could be subject to limitations designed to counter extravagance or unreasonableness. The court held that the Plaintiff's actions in repairing the vehicle were reasonable, as he took the vehicle to a reputable repairer approved by the car manufacturer. The court emphasised that the onus was on the Defendant to prove that the Plaintiff did not act reasonably or that the repair costs were extravagant or unreasonable. The court concluded that the Plaintiff was entitled to recover the repair costs unless the Defendant could prove that the costs were extravagant.

The final orders of the court were that the Plaintiff could recover the full cost of repairs, but the Defendant could challenge the claim if it could be shown that the repair costs were extravagant. The court reserved the decision on costs.

Orders